US Supreme Court Justice Elena Kagan visits U of T Faculty of Law

A U of T Law-hosted conversation between Elena Kagan, Associate Justice on the Supreme Court of the United States, and Rosalie Abella, Canadian Supreme Court Justice, focused largely on the state of the American judiciary, as well as the recent controversial hearings of US Supreme Court Justice Brett Kavanaugh.

The event took place at the Jackman Law Building on November 12 and was livestreamed on YouTube.

Abella began the conversation by asking Kagan, “I think it’s on everybody’s mind who watched the recent hearing: Do you like beer?” referring to Kavanaugh’s repeated phrase during the Senate proceedings — eliciting a laugh from the audience.

Kagan dodged the question and the discussion moved on to comparisons between the two judicial bodies of Canada and the US. Kagan noted that although confirmation hearings allow the public to get to know the process and the nominees, they have some problems.

“It seems good to me from the perspective of transparency of governance, people [senators] taking their constitutional role seriously and having an opportunity to see a person, and to try to figure out what kind of justice she or he would be, and in the abstract, I think that’s a good thing,” said Kagan.

“In the concrete, it’s a little hard to watch any of these hearings and think they accomplish all that much.”

In Canada, justices are appointed by the governor general according to the prime minister’s recommendation, unlike in the United States, where the president nominates a person who must be subsequently confirmed by senators.

Kagan also said that in previous years, many nominations to the US Supreme Court have had wider bipartisan support, noting that judges received support from members of a party that did not nominate them. More recently, debates have become more politicized and divided.

“I do think there’s room for people to listen to each other and try to find common ground and try to find areas of compromise,” said Kagan. “The way to find agreement and the way to find consensus, is not to keep talking about those big questions, because you’re just going to soon run into a wall, but to see if you can reframe the question.”

Kagan noted that after Justice Antonin Scalia’s death, the court worked very hard to not come under gridlock and get stuck with tied votes by only having eight members. In the two-year period, Senate Republicans refused to consider Judge Merrick Garland, a nominee of President Barack Obama.

During the Q&A session, law student Teodora Pasca told Kagan that she “almost regretted” asking her question, but she said that she and many people she knew in the legal profession watched the Kavanaugh hearings “with a little bit of pain in our hearts.”

“I’m wondering what you think the role of the Supreme Court is,” she asked, “and how it can be considered legitimate in its treatment of women who have experienced violence, when you have not one, but two justices who have been levelled with credible accusations, and the appointment process has put them forth.”

The two justices referenced are Kavanaugh, who has been accused of sexual violence by Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick; and Clarence Thomas, who was accused by Anita Hill in 1991.

Kagan replied, “You’re right, you should not have asked me that question, and I’m sorry to say that but there are some questions that — I’m part of this institution, I care about it a lot, I care about my colleagues a lot and that’s something that I’m not going to be talking about.”

Disclosure: Teodora Pasca was The Varsity’s Comment Editor from 2016–2018.

The Supreme Court of Canada has ruled against Trinity Western University (TWU) in a case that pits religious freedom against LGBTQ+ rights. TWU is a BC-based evangelical Christian university with a satellite campus in Ontario that was denied accreditation for a proposed law school by the law societies of BC and Ontario on the grounds that TWU discriminates against LGBTQ+ people. On June 15, the Supreme Court ruled 7–2 in favour of the law societies.

The case arose over a covenant agreement that all TWU students have to sign, which binds them to a code of conduct that specifically requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

“The community covenant is a solemn pledge in which members place themselves under obligations on the part of the institution to its members, the members to the institution, and the members to one another,” reads Section One of the agreement on the school’s website.

“TWU reserves the right to question, challenge or discipline any member in response to actions that impact personal or social welfare.”

As a result of the university’s community covenant agreement, concerns about the personal safety and open access of LGBTQ+ students were raised by various groups, including U of T campus group Lesbians, Gays, Bisexuals, and Trans People of the University of Toronto (LGBTOUT).

On November 30, 2017, a two-day hearing for the case was held by the Supreme Court against the university. LGBTOUT, which is the longest-standing LGBTQ+ group in Canada, travelled to the Supreme Court to act as an intervenor on the case, arguing that the law school “would harm prospective LGBTQ+ students, who would be effectively barred from TWU just because of their sexual or gender orientation.”

An intervenor on a Supreme Court case is meant to provide perspective to the matter and may be brought in at the discretion of the court.

In a statement released on the group’s Facebook page, LGBTOUT called the ruling “fantastic news.”

“There is no place for LGBTQ+ discrimination in the legal profession or in Canadian society. LGBTOUT is thrilled with this news and victory for our community, especially as it comes during Pride Month!”

Judges Suzanne Côté and Russell Brown were the only judges that sided with TWU, arguing that judicial intervention should be more limited when it comes to approving law programs.

“While, therefore, the [Law Society of BC] has purported to act in the cause of ensuring equal access to the profession, it has effectively denied that access to a segment of Canadian society, solely on religious grounds. In our respectful view, this unfortunate state of affairs merits judicial intervention, not affirmation.”

This is not the first time TWU has faced the Supreme Court over grounds of religious freedom. In 2001, the British Columbia College of Teachers refused to accredit their teacher training programs due to the discriminatory nature of the community covenant.

After the court’s ruling, it is uncertain whether TWU will continue its plans for its proposed law school as the Law Societies of British Columbia and Ontario refuse to accredit their law degrees.

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LGBTOUT to intervene in Supreme Court case

Campus group Lesbians, Gays, Bisexuals, and Trans People of the University of Toronto (LGBTOUT) is headed to the Supreme Court of Canada on November 30 to act as an intervenor on a court case involving Trinity Western University.

The university’s law school was denied accreditation from the Law Society of Upper Canada and the Law Society in British Columbia, which cited discrimination due to the school’s policy requiring students to sign a covenant forbidding homosexual acts. Trinity Western subsequently appealed the decisions; the BC law society’s decision to refuse accreditation was overruled by the BC court of appeals, but the Ontario Court of Appeals upheld the Law Society of Upper Canada’s decision. As a result, the case will now go before the Supreme Court of Canada.

LGBTOUT was approached by lawyers involved in the case to ask them to act as intervenors. An intervenor on a Supreme Court case is meant to provide perspective that the two parties involved do not bring to the case. In this instance, LGBTOUT was deemed to help bring the perspective of LGBTQ+ students.

LGBTOUT is the longest-standing student LGBTQ+ group in Canada. “We are an LGBT student group, so we’re hoping that our arguments that we make show that LGBT students’ voices are being represented,” said Gaby Garcia-Casanova, the group’s Public Relations Director.

Richard Moon, a law professor at the University of Windsor who specializes in religious law, argues that, if there are a limited number of potential law school positions in Canada and a whole law school’s worth of positions are available under the condition where they would be required to sign the covenant, then there may be a basis for discrimination.

The most relevant precedent to this case was Trinity Western’s teaching school. The British Columbia College of Teachers refused to accredit the teacher training programs on the same basis as the Law Society of Upper Canada — that the covenant was discriminatory. In this earlier case, the Supreme Court ruled in favour of the university.

Moon believes that Trinity Western will base a large portion of their argument on this earlier ruling.

For its application, LGBTOUT was required to compile all of its arguments into a factum that they submitted to the Supreme Court in the form of an application.

Initially, its request to leave to intervene was denied. Chief Justice Wagner overturned the decision and released a statement explaining that it had come to the decision that its perspective should be included in the hearing.

The hearing, scheduled to be held from November 30 to December 1, will determine whether Trinity Western has the freedom to receive accreditation with the covenant in place or if the Law Society of Upper Canada is correct in its claim that the policy is discriminatory.